Statutory rape comes to the attention of authorities usually in two ways: the parents "find out" or the girl reports it, often because it is a "real rape" but may not be provable as such. That was the problem in *Michael M.* Michael slugged Sharon several times in the face, leaving bruises, but Calif a tthe time had a resistance requirement and it wasn't enough force to overcome that requirement or even to "vitiate consent". She said no, but that wasn't enough. *Pace* Justice Blackmun's turning the earlier "making out" into "foreplay", and the slugging into "intimacies", under current California law, this would be a rape. *Pace* Mae Kuykendahl, my students traditionally have been up in arms asking why it wasn't charged as a rape (and I tell them about the then-existing law) and many are unwilling to find "consent" below the age of about 15 (and developmental psych and new research on adolescents suggests that one cannot presume "consent i nthe way we adults understand it until around 15-16) Justice Stevens' dissent notes that states with gender-neutral statutes did not seem to have a problem enforcingthier laws and then goes into a riff about punishing the more "culpable" party as a way to deal with the problem of prosecuting both partners. For articles examining the difference in "consent" and consequences to girls as opposed to boys, see Michelle Oberman, *Turning girls into WOmen . . .* 85 J. Crim. L. & Criminology 15 (1994) and Symposium on Statutory Rape in DePaul L Rev. 2001 (?) ( I don't have the cite handy, I apologize) But see Fran Olsen's critique in Texas L. review. Fran's article is very useful for having the students examine all the different ways in which the calif law discriminates on the basis of gender in all directions. ( I Interestingly, current Federal law gives prosecutors incentive grants to prosecute statutory rape and requires pregnant teenagers to identify the father of the child in order to be eligible for a TANF grant. Mandatory reporting laws alos require medicalpersonnel to report sexual activity, but these laws tend to be ignored in cases of teenagers even if sexual abuse has occurred) Back to law: The so-called liberal California Supreme Court found that the risk of teenage pregnancy was a compelling state interest in the case, with Justice Mosk dissenting. The majority opinions in *Michael M* ar eall a little weird, but perhaps the underlying facts pushed the Court to uphold the statute in part. Justice Rehnquist said inermediate scrutiny didn't apply because men and women ar enot "similarly situated" with respect to pregnancy, then analysed the case under both rational basis and intermediate prongs; if pregancy is the frame for comparison, then even given cases after *Michael M*, rational basis would still apply. It is unlikely to get back to the Supreme Court, however, since only a few states havenot switched to gender-neutral "statutory rape" laws. Many statutes now do distinguish on the basis of age difference--the Federal laws came from concerns about adult male exploitaiton of young womenh/teenage girls (and it is a problem, especially in some ethnic communities) . Other statutes make distinctions in punishment based on the age differences--the Model Penal Code does this. Others, like California's, dont make a facial distinction, but as we learned in the "Spur Posse" case, DAs hardly ever prosecute statutory rape (that is changing given the federal monetary incentives, however) The struggle I see coming is over age-of-consent, with a horrible subtext involving arguments that pedophilia and/or sexual abuse of the young is not harmful, etc. Best Lynne ----- Original Message ----- From: "Volokh, Eugene" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Tuesday, July 15, 2003 2:23 PM Subject: Statutory rape laws
> I appreciate Bryan's arguments in favor of gender neutrality here, > but does he have any thoughts on the prosecution problem? If a state law > prohibits, say, all sex with under-16-year-olds (with no Romeo/Juliet > provision), how can this ever be enforced when two 15-year-olds are having > sex? Presumably both will take the Fifth, and the likely witnesses -- often > parents of one of the children -- won't want to testify or even call the > police, given that their own child would be put at risk of prosecution. > What to do? I suppose it might be possible to have some other rule, such as > prosecuting the older one but not the younger one, even if the difference is > a few months. Would that be the suggestion, and would it be effective? > > More broadly, assume that the danger to girls -- the physical danger > of pregnancy, the less imbalanced physical danger of STDs (as I understand > it, STDs are more easily spread from men to women rather than vice versa, > but I may be wrong), and the empirical sense that girls are more likely to > be reluctant participants than boys, and thus more likely to be emotionally > hurt by relationships gone bad (as relationships often do) -- does appear > greater than the danger to boys. If that's so, then would it be fair to > prosecute the 15-year-old girl (and often not the 15-year-old boy, for the > reasons I mention above, at least assuming the sex-neutral tiebreaker, such > as age, cuts in favor of prosecuting the girl) under a statute that's aimed > at protecting the girls themselves? > > I should say that my sympathies are with equal treatment without > regard to sex here; and I should also say that I'm not wild about statutory > rape laws with fixed age tests (as opposed to difference-between-the-ages > tests). Still, the objections I mention above give me pause, so I was > wondering if Bryan could dispel them. > > Eugene > > > -----Original Message----- > > From: Bryan Wildenthal [mailto:[EMAIL PROTECTED] > > Sent: Tuesday, July 15, 2003 1:10 PM > > To: [EMAIL PROTECTED] > > Subject: Re: Lawrence, Limon and SDP Review Stratification > > > > > > Attempting to respond only to the first paragraph of James > > Blumstein's very thoughtful posting (see below -- I don't > > have time to respond to the rest, which also raises very > > valuable points): > > > > Indeed, I started wondering about Michael M v Sup Ct after I > >
